The future of health care, part I: The most important decision the Supreme Court will make?

March 6, 2012 - Mike Maneval

As the Center for Individual Freedom and American Center for Law and Justice noted this past month, one of the aspects of the Patient Protection and Affordable Care Act - or health care reform act of 2010 - the U.S. Supreme Court will consider is the law's severability. It is in all likelihood one of the most important questions the justices will ponder.

When the law was passed, language was included to require its abolition were any part or portion ruled unconstitutional. The question then that arises is whether an action by congress can require the courts to void laws and policies the courts decline to define as unconstitutional or if Congress in drafting laws can tie policies together so that several are conditional on all passing constitutional muster.

The implications for severability beyond the checks and balances between the legislature and courts are profound. A decision to strike the authority of Congress to limit severability could allow the most promising policies within the law - requirements that insurance companies provide the services for which they've been paid rather than avoid responsiblity through "pre-existing conditions," the creation of regional exchanges to offer consumers more choices - to move forward while the courts excise its greatest weaknesses.

If the law is severable, the Court could strike down the consumer mandate - the clearest imposition on individual rights within the 2010 law - by itself. The Court's actions then would be another step in reforming health care to meet the needs of consumers. If it isn't, the advances and setbacks of the past three years become theoretical lessons, and the debate begins anew from where we all stood as President Barack Obama was sworn in.

And the potential impact of that may very well leave the matter of severability the most important issue the Supreme Court will address.